Q&A: White House E-mail Lawyer Anne Weismann

CREW issues its final report on a fading scandal

In April 2007, Citizens for Responsibility and Ethics in Washington told the world that the White House had failed to comply with its legal obligation to properly retain and archive e-mail records. The revelation came after the Abramoff scandal revealed that some officials were using private e-mail accounts to conduct official business, but this was something different: CREW alleged that at least five million e-mails had been lost due to the White House’s failure to implement a comprehensive e-mail archiving system.

That report kicked off a long-running saga, driven by investigations by Representative Henry Waxman and lawsuits from National Security Archive, the George Washington University-based records watchdog, and CREW. The Obama administration settled the cases in December 2009, agreeing to release documents that recorded their predecessor’s response to the crisis. From these tens of thousands of pages of documents, CREW produced what should be the final word on the issue, a fifty-plus page report which was released last month.

CREW was originally alerted to the problem from whistleblowers, who told of their superiors’ disinterest in efforts to grasp the full extent of the problem, to propose solutions, and to archive what stray e-mails could be found scatted across various computers or on the White House’s emergency backup tapes. While the nature of the problem—how can you count things that are missing?—has obscured the full extent of any data loss, a White House internal analysis from 2006, before the problem went public, showed that there were 473 days where a component of the White House registered not a single archived e-mail. Another 229 days had abnormally low numbers of archived e-mails.

While some of these messages were subsequently archived, the missing days included periods of time where history—not all of it so favorable, in retrospect, to the Bush administration—was being made, including the period surrounding the Valerie Plame Wilson investigation.

Most e-mails at the White House are governed by the Presidential Records Act, a post-Nixon law requiring outgoing presidents to turn over their documents to the National Archives and Records Administration (NARA), where they can remain out of public view for up to twelve years. Other e-mails at the White House that are less closely connected to the president’s executive powers are governed by the Federal Records Act, and more open to the public.

CJR spoke with Anne Weissman, who oversaw federal information law litigation as a high-ranking Justice Department lawyer before joining CREW as a senior counsel, about the report’s conclusions, the chances of further restoration, and what we know about the Obama administration’s e-mail archiving procedures.

What’s the analogy for what happened here if we were talking about paper files?

Let’s imagine you keep your paper files, but all you do is open a closet door and throw them in. So four years later, you open the closet and you have a pile up to the ceiling. Stacks and stacks of paper—they’re not organized in any way. You can’t tell what comes from a presidential record, what comes from a federal agency, what it’s about.

It’s maybe a little worse. It’s a closet with a hole in the floor, where ten or twenty percent slips out.

That’s right. The other thing about it is that it would be an unlocked closet door. It’s possible that someone in the four years reached into the closet, took out a handful and put them in the shredder. We don’t know. Nobody can certify that things didn’t go missing, because the system was open to access by others.

So how many e-mails were lost?

We know a significant portion were. Was it one million, was it ten million? We just don’t know. The number may ultimately not be knowable, as unsatisfying as it is. If they were never captured in the first instance, we just don’t have a record of them anywhere.

Initially we focused so much on the number, because it was such a big number, and it suggested that the problem wasn’t just some small computer error. But as we dug into it and read thousands of pages of documents, what was more striking was that there were a series of missteps that the Bush White House made, and they were told over a period of many years that there were problems: “If you do X, there will be problems.” And they went ahead and did X. “If you do Y, there will be problems.” And they went ahead and did Y.

There’s a difference between an e-mail that’s unarchived and one that’s totally lost.

That’s right. But you could say for all practical purposes unarchived e-mails are lost—because if they don’t have it in their archive, it’s not accessible.

One of the things that I think the Bush White House used to try to defend their actions was to say “Well, we came in and we found all these additional e-mails.” But if they existed on backup tapes—and they aren’t all on backup tapes—well, they’re not accessible. They’re not part of the archive.

Through the limited restoration project that was done [by the Obama White House], we discovered that there most definitely were e-mails on backup tapes that were not part of the archive. Those are now part of the archive of e-mail records for the Bush White House.

Isn’t the National Archives required to present as full a record as they can? Is there any possibility that more e-mails could come to light once they’re in the Bush library?

We have a hole, and everybody knows we have a hole: there definitely are more e-mails on those backup tapes, and I would have hoped that NARA would view this as a sufficient priority that they’d push on their own. But so far they haven’t.

It’s a question of money. Our hope would be that we could convince Congress or someone to appropriate money for this. That’s why we wanted to make sure the Archives kept the backup tapes. And it’s still a hope, but the story doesn’t attract the same attention that it did. Everyone has moved on.

The fact of the matter is that if the Bush administration had done a full restoration from the backup tapes at the outset it would have ended up costing them less. And that was the recommendation that the Office of Administration had made. And it never happened.

The White House knew they had a big problem on their hands in 2005. How did you find out about it?

We found out about it because we had someone, essentially a whistleblower, come and tell us. It seemed sort of incredible: that the White House had discovered that many millions of e-mails were missing?

Then we had another source come to us and say the same thing. And at that point, it seemed reliable enough to put it out there. I will admit I had some trepidation. I was waiting for the White House to say this is totally wrong. And they didn’t!

When our first report went public, they admitted it. They might have quibbled with the numbers, and they certainly tried to make CREW and our motives an issue—as opposed to their own conduct—but there was no flat out denial. Then Waxman’s committee got involved and they got access to the actual documentation.

How else did information come out?

When the Obama administration came in, there was an interest in settling the lawsuit. We said any settlement had to have three key components: there has to be some restoration of missing e-mail, we have to have assurances that the White House is now using an appropriate system, and we need documentation because we think the public needs to know the story. So we got tens of thousands of documents from the White House as part of our settlement.

What were the grounds for your lawsuit?

We were arguing that the failure of the White House to preserve and restore the missing e-mails was a violation of the Federal Records Act.

There are components of the White House that produce federal records—like the Council on Environmental Quality, for example. And there are components that create presidential records. The courts have said that private groups cannot sue for the same problems with presidential records. And normally that would have precluded this lawsuit.

A bunch of different administrations have been sued over this issue. The Clinton administration was sued, and they set up a system that maintained federal and presidential records separately. When Bush got in and scrapped that system, they didn’t maintain them separately. They just dumped them all together.

It was a problem legally for them, but it helped us. That gave us a basis to go in and say, “Well, we’re suing over the federal records.” Since they couldn’t differentiate between them, when they did restoration they had to restore both. I think it’s the greatest irony.

Huh. If they had gone ahead and fixed the system for the federal records, would there be anything that anyone could do about them not having an adequate system for presidential records?

No. The bottom line is that if the Bush White House had chosen to say, “We don’t want to put in a good system for presidential records,” I’m not sure there was anything we could have done.

And that’s a big problem. We have been pushing for legislative changes, amendments to both the Federal Records Act and the Presidential Records Act. There has been legislation that has been proposed—and that I think is getting some renewed interest—that would require the Archives to certify that the White House system meets requirements for presidential records.

But the archivist would have no ability to compel the White House to do anything. Congress has been really afraid of the constitutional issue lurking in the background: if you have legislation that directly limits or controls how a president manages his or her presidential records, that this is going to run afoul of the constitution.

The argument I make in response to that is that I think that if all you are doing in legislation is requiring that the system have certain functions consistent with archival practice, I don’t think that’s unconstitutional.

Why did this problem happen? It seems hard to believe that they preferred Microsoft Exchange so much that it was worth scrapping the Clinton administration’s system [ARMS, the Automatic Records Managements System] that worked with Lotus Notes.

Based on my review of the documents, I think they had a patent disregard for their record-keeping obligations. It just wasn’t a priority for them. Clearly the technical people within the White House understood that practices they were pursuing were not in compliance with their legal obligations, and kept telling them that.

It’s understandable that they don’t want to continue ARMS, because Lotus Notes is not the preferred system for many people and organizations. I don’t think there’s anything alarming about that. They try to tinker with ARMS to see if it can preserve electronic records created in Microsoft Exchange. And they can’t get it to work.

So their people tell them you really can’t go through with this migration if you don’t have a system in place, and they ignore it. And then they come up with a new system and they scrap that.

To me, one of the most troubling things they did was their very, very, last minute decision to scrap the ECRMS after they had spent millions of dollars and years in developing it, and for reasons that just aren’t credible. Even the Archives did not accept them as credible.

What was their explanation?

Well, part of it was that it didn’t separate federal and presidential records, completely ignoring the fact that was a decision they had made early on.

But was that the right decision?

No. I think they are required to, and NARA would certainly say they are required to. If you don’t keep them separate, I don’t see how you can comply with your legal obligations for the two different kinds of records.

So when they made this incorrect decision, by the time it was 2007 and ECRMS was ready to go up, in your view it was too late to worry about it even if it was a bad decision?

But I don’t know what it would have taken to correct that. What I can’t figure out by looking at the documents was that right up until the moment they scrapped it, they were going ahead, full steam. The documentation we did get did not really offer a coherent explanation that lots of people would agree and say “That makes sense, they should have abandoned it.”

Now what my source had told me—and not surprisingly I didn’t see any confirmation of this in the documents—was what troubled people was its search capabilities, that it could do a Google-like search. As it was described to me, there was a briefing to describe how ECRMS would work, and the White House Counsel was present, and others, and the sense that this person got was that when they saw how effective it was in searching, coincidentally that was when the decision was made not to pursue it. So this person presumed from that, that that was a motivation. Obviously that’s a much more sinister explanation.

Bottom line, what your source suggested was the problem with ECRMS was that it would have worked too well.

The other thing they said was that it wasn’t going to be ready in time for a presidential transition. And NARA didn’t agree with that either. So they held out for another system that never got implemented by the time they left office.

What didn’t you get access to?

The body of documents that we did not get access to—and never will, I’m sure—is whatever communications there were with White House counsel’s office. The documents support that they were definitely involved and kept abreast of what was going on.

They would have to be—the counsel would have to know how they were meeting their records requirements.

Right. But we do know if you look at the chronology that there were certainly recommendations that were made to White House counsel’s office and then nothing happened. So one inference that I think is perfectly legitimate is that the counsel’s office is the one that killed it. But I don’t know.

You didn’t get those because they were presidential records. Won’t those be public in twelve years?

That should be the case.

What was NARA’s ability to oversee this system?

It was totally at the good graces of the White House, and the White House froze them out for long periods of time. And there was nothing NARA could do. Some of these documents really expressed NARA’s frustration. The big overriding issue for NARA is always the transition—when a new president comes in, NARA starts planning almost immediately for the transition to the next one because it’s such an humongous undertaking. NARA really needed to get information about the systems so they could start planning. And they just weren’t getting that information. They didn’t know about the problem until our report came out, and they’re kind of blown off by the White House.

So even though NARA is the agency that’s going to end up holding these records, and processing them, and figuring out a way to get them to the public, there’s no requirement that the White House works hand in hand with them to make sure they are coming in a format that’s going to work.

I assume the assumption from Congress is that the president wants to preserve history, and that the president wants to do the right thing. The problem is when you get a president that is not doing the right thing—they have no ability to compel otherwise.

One of the more salacious parts of the story is the Libby e-mails. The White House’s archives contained no or few e-mails from certain days requested by special counsel Patrick Fitzgerald in his investigation of the Plame leak. In the report you say there are “tantalizing tidbits… that suggest more nefarious conduct.” It’s the records recording the response to Fitzgerald’s request that are missing.

One wonders what was going on. The idea that after being told—and maybe they suspected it, but having it confirmed—that Justice was doing an actual criminal investigation, that there would have been no e-mails in the vice president’s office is not believable.

They couldn’t find them. And they went to backup tapes, and they were not on backup tapes for the OVP [Office of the Vice President]. So then someone came up with the idea of looking at the backup tapes that have the individual mailboxes of individual OVP employees. Now that’s where I think in my mind one of the most curious and suspect things happens, which is when they put together the list of boxes to be recovered, somehow Libby’s name isn’t on it.

The report offers some potentially innocent explanations for how he was left off the list. Libby had this weird status—he was technically a Bush employee detailed to Cheney, and not an OVP employee.

But he was! He had this dual status. It’s just hard to fathom how the list could have gone through White House Counsel’s office for them to sign off on and they wouldn’t have said “You know, you really should have Libby on this.”

So do we know if Fitzgerald noticed that he didn’t get e-mails from Libby from this period?

No, we don’t. I assume there were some e-mails from Libby that were in other people’s e-mails that he got. And we know from a letter that Fitzgerald sent to Libby’s counsel and that Fitzgerald made public that he had been told by the White House that they had some e-mail problems.

My source told me that one of the things that was so curious was that White House Counsel’s office prepared rigorously for the meeting where they were going to tell Fitzgerald’s people about this problem, and that they were surprised and relieved when they got no pushback from him.

So your settlement required them to got back and look again for those days.

Yeah, and we don’t know what they found, because they are all presidential records.

So how do you know about the quality of compliance with the settlement? It goes into a twelve-year box at the Archives, right?

You’re right, and we don’t. NARA was monitoring compliance, and they have the responsibility to ensure the widest collection possible. We have to count on NARA and the assumption that the Obama administration has no interest in not seeing the broadest preservation possible.

Some people are mistaken—they think we actually got the e-mails. We don’t have the e-mails, and we won’t get them for some time. They are presidential records of Bush that are with NARA as part of the Bush collection.

Part of your settlement allowed you and your co-plaintiffs, the National Security Archive, to pick what days to recover.

The Obama administration didn’t have any vested interest in any particular days, and they were open to us saying “These are days we are interested in.” We were very interested in the Valerie Plame Wilson investigation. Beyond those we looked at a spreadsheet the Obama White House provided us of days with low e-mail volume for each component and picked the lowest days that had not been designated for restoration.

During the Bush Years, the Office of Administration began to assert, that like most other White House components, that it was not subject to Freedom of Information Act requests, a decision that was upheld in court. Is that a sideline from that case?

Well… I’ll tell you, and you can judge. When we understood from our source that OA had done analysis of the problem, one of the first things we did was file a FOIA request. The OA initially accepted the request, and said it was going to be a while. We went into the court for a preliminary injunction, and we worked with the court on a timetable to do production. And then, just at the point that they were supposed to identify exemptions they were claiming, they came in with the legal position that they were no longer an agency subject to FOIA.

The OA and Justice would say—and there is some documentation of this—that this was an issue that had been on the table before. And yet I think the timing is very interesting. Ultimately, as it turned out the documentation we wanted we got we got through Waxman’s committee or the settlement.

So the court ended up agreeing that OA wasn’t subject to FOIA, but you still got the documents. But that’s kind of extraordinary. Not every document that OA has is going to become the subject of a congressional investigation or a White House settlement.

Exactly. And as an aside, a group of us early on in this administration sent a letter to the White House counsel asking on their own discretion that they go back to the practice of every other administration before Bush. And they’ve ignored it. But it does seem consistent with their transparency policy. It’s hard to argue that there are some really good internal reasons not to, given that it functioned from its creation as a FOIA agency until just a few years ago.

What do we know about how the Obama administration is handling the challenge of archiving their e-mails?

We had lengthy negotiations with the White House, and NARA was included because they were a party to our lawsuit. I’ve never heard from NARA that they weren’t happy with it. All of the information we’ve gotten tells us that they are complying with their record keeping obligations. It preserves electronic records electronically in a very state of the art, tamperproof way. It segregates presidential from federal records. And they have built in a lot of checks and balances to make sure that systems are working. I think the Obama White House was already on this course, and there was an added incentive that this would also be a basis of settling the lawsuit.

We got access to a lot of underlying documentation that covered what they were doing that we weren’t allowed to make public, because of legitimate concerns about protecting the system. The Obama administration did put together a description for public consumption.

This interview has been condensed and edited for continuity and clarity.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.

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